Revenge porn has been declared a crime in 38 different US states, including California. It is also a target for numerous civil suits. According to California’s criminal laws, it is an offense to distribute a person’s nude images without his/her consent. Currently, revenge porn is a growing area of criminal litigation in the state of California.
If you have been charged with revenge porn in Orange County, you should seek professional legal representation. This is because the California Department of Prosecution takes this offense exceptionally seriously, and you may face harsh penalties upon conviction.
We at Orange County Criminal Lawyer understand how genuinely stressed and frustrated you can be when facing criminal accusations for revenge porn. We are here to help you. We will help you protect your legal rights and build an excellent defense strategy. Contact us to learn more about our services.
The Legal Definition of Revenge Porn
California’s primary law on revenge porn is PC 647(j)4. According to PC 647(j)4, an individual can be charged with the criminal offense of revenge porn if he/she distributes nude images of another person without his/her consent.
For instance, if you took a naked photo of your partner and later posted it on Facebook when the romantic relationship turned sour, the California Department of Prosecution can charge you with revenge porn. Revenge porn is categorized as a misdemeanor.
What the Prosecution Must Prove for You to be Convicted of Revenge Porn
For the court to convict you of revenge porn, the prosecution must prove the following elements:
- You had an image of an identifiable person’s intimate body parts, or the image of this person while engaging in a sexual activity
- You distributed this image intentionally
- You had an understanding with this identifiable person that it would be private
- You knew or ought to have known that if you distributed the image, this person would suffer emotional distress
- The victim ended up suffering emotional distress
According to California’s revenge porn laws, the term ‘intimate body part’ may refer to a person’s genitals, anus, or any part below a female’s breast. An identifiable person means that someone else who has ever seen the victim or knows him/her could identify him/her using the nude image. The term ‘sexual activity’ may include sexual intercourse, masturbation, sexual penetration, sodomy, or oral copulation, in which the identifiable person is a participant.
You will only be convicted of revenge porn if the prosecution proves beyond a reasonable doubt that you intentionally distributed the nude image. The prosecutor must ascertain clear and sufficient evidence to show that you distributed the image, or intentionally caused someone else to post it to a social network. The court will not convict you of revenge porn if you demonstrate that you were reporting unlawful activity, obeying a court order or a subpoena, or acting in a public legal proceeding.
The Penalties for Revenge Porn
Typically, the penalties for revenge porn include a county jail term of a maximum of six months or a fine of up to $1,000. In some situations, you may receive a harsher punishment if there are certain aggravating factors in your case.
These aggravating factors include having a prior conviction of this offense or posting the nude images of a minor. The most severe form of punishment you may receive for revenge porn is a jail sentence of a maximum of one year or a fine not exceeding $2,000.
In some situations, the judge can substitute the county jail term with summary probation. During the probation period, you will have to adhere to certain conditions, including frequently maintaining contact with the probation officer. If you violate any of the probation conditions, you will be imprisoned.
Are There Any Immigration Consequences Upon Conviction?
You will not suffer any immigration consequences upon conviction for revenge porn. Some crimes in California can result in various immigration consequences for non-citizens, including deportation and denial of entry into the United States.
Crimes that can lead to immigration consequences fall into the category of ‘crimes involving moral turpitude.’ However, revenge porn isn’t categorized among these crimes.
Expungement of a Revenge Porn Conviction
You can obtain an expungement if you have been convicted of revenge porn. According to PC 1203.4, any person who has been convicted of a misdemeanor can receive an expungement upon successful completion of his/her sentence.
If you obtain an expungement of your revenge porn conviction, you will unlock plenty of opportunities that could not have been available to you because of your criminal history. For instance, you will be able to be considered for scholarships and university admissions and even pass an interview for your dream job.
Revenge Porn Convictions and Gun Rights
A criminal conviction for revenge porn will not affect your legal right to own or possess a firearm. According to California's criminal laws, certain offenses can make an individual lose his/her gun rights when convicted.
You will still retain your gun rights upon conviction for revenge porn. You will only lose the right to possess or own a firearm if you utilize the gun for the furtherance of illegal activities.
Revenge Porn and Sex Offender Registration
According to PC 290, convicts of certain sex offenses should register as sex offenders with law enforcement agencies annually, and whenever they change their residential addresses. The primary purpose of sex offender registration is to enable law enforcement to keep track of your whereabouts.
Although revenge porn is categorized as a sex crime, you won’t be required to register as a sex offender upon conviction and release from jail. But, you should note that the judge has absolute discretion in deciding whether or not you should register as a sex offender.
Legal Defenses to Revenge Porn
You can fight revenge porn charges using various legal defenses. Here are the most common legal defenses to revenge porn:
- Lack of intentional distribution
- Consent
- No intention to bring about emotional distress
- Lack of reasonable expectation that the images would be private
Let’s discuss each of them in detail:
1. Lack of Intentional Distribution
For you to be convicted of revenge porn, the prosecution must prove beyond a reasonable doubt that you intentionally distributed the victim’s nude images. If you distributed them accidentally, you would have a valid defense.
For instance, you may have just posted them on a social network by accident. In such a scenario, you will obtain an acquittal.
2. Consent
The victim may have given his/her consent for you to distribute the nude images. Consent can form a legal defense ground if you can effectively demonstrate to the court how the victim consented to the distribution of the images.
The victim may have expressly told you to distribute the image via a text message. In some situations, he/she may have impliedly indicated consent for you to post the image.
3. No Intention to Bring About Emotional Distress
The court will hold you guilty only if you knew that if you distributed the image, the victim would have suffered emotional distress. The jury will acquit you if you successfully demonstrate that you didn’t have any intention to make the victim suffer emotional distress.
For example, you can convince the jury that you posted the nude image as a joke, and you believed that the victim would have found it funny. This implies that you didn’t know that the victim could have been negatively affected by your actions.
4. Lack of Reasonable Expectation that the Images would be Private
You can convince the court that the victim did not have a reasonable expectation that the images would be private. Maybe the victim knew that you were taking the intimate photographs for use in commercial purposes. Or rather, you may have expressly informed the victim of your intention to distribute the images. If you use this defense, you will have to show sufficient proof that the victim didn’t have a reasonable expectation of privacy.
Civil Remedies for Revenge Porn
If you are facing criminal charges for revenge porn, you may also have to defend a civil suit instituted by the victim for compensation. Currently, revenge porn civil cases are a growing area of jurisprudence in the United States, including California.
Assembly Bill no. 602 is one of the proposed amendments to the California Civil Code. The primary purpose of this new legislation is to enable alleged victims of revenge porn to seek compensation via instituting a civil lawsuit.
According to this bill, the court can award compensatory damages to a victim of revenge porn if he/she successfully proves that there was no consent to its creation or release. Therefore, unlike in a criminal case where the victim should have consented to the taking of the pornographic film, the plaintiff in a revenge porn civil suit must demonstrate that he/she gave no consent to the film's creation. Note that the burden of proof in civil cases in California is on the plaintiff and the standard of proof beyond a reasonable doubt.
Generally, this statute targets ‘deep fake videos.’ These are videos that graft individuals’ faces (often celebrities) into pornographic films without their consent.
Although this bill hasn’t yet been passed, the alleged victim can still file a civil claim against you for compensation. In some situations, you may win your criminal trial and heave a sigh of relief, only to be notified that the victim is seeking compensation from you via a civil suit. You can lose the revenge porn civil suit, even though you've won the criminal court trial.
Currently, there is no record of a successful revenge porn civil suit in California. But, a Michigan court gave an award of $500K to a woman who was a victim of revenge porn. The ex-boyfriend of this woman had posted her intimate photographs online. This implies that California courts can be persuaded by the growing revenge porn civil jurisprudence in the United States and award damages to the alleged victims.
The primary type of damages that can be awarded in a revenge porn civil suit is general damages. In a nutshell, general damages cover the extent of emotional suffering that the victim went through when the defendant distributed the pornographic images. It is highly unlikely for a court to order you to pay damages to a revenge porn victim if you prove that you don’t have enough financial assets.
You should get in touch with a criminal defense attorney as soon as possible after you find out that you have been charged with revenge porn. An attorney can advise you on the potential penalties you risk facing upon conviction, as well as the probability of success of the victim’s suit should he/she file a civil claim against you.
Liability of Website Owners for Revenge Porn
Several websites deal with revenge porn in the United States. These websites regularly publish sexual and nude photos of jilted lovers, and they may include their personal details, such as their names, and work and residential addresses. Some websites may provide links to the individual's website or social media pages.
Currently, law enforcement has shut down most revenge porn websites, but new ones will always keep popping up. Moreover, pornographic content is naturally viral, and even if you succeed in removing your images from one website, it can be impossible or difficult to scrape them off from the internet.
According to the US Communications Decency Act, owners of revenge porn websites are immune to prosecution. The rationale here is that a website is just a conduit, and the owner shouldn’t be held liable for the actions of third parties. The only course of action that a revenge porn victim can take to have his/her images removed is to file a civil suit for copyright infringement.
Related Offenses to Revenge Porn
Various criminal offenses are related to revenge porn. These offenses include the following:
- PC 647(i) Peeking while loitering
- The United States Code 1801 Video voyeurism
- PC 647(j) Privacy invasion
- PC 602 Trespassing
- PC 1(a) Possession of child pornography
Here is a brief discussion of each of them:
1. PC 647(i) Peeking While Loitering
The criminal offense of peeking while loitering is also referred to as ‘prowling’ or ‘unlawful peeking,’ and its primary law is Penal Code 647(i). PC 647(i) is part of California’s criminal ‘Peeping Tom’ laws.
According to PC 647(i), an individual can be charged with the criminal offense of peeking while loitering if he/she delays, prowls, wonders, or lingers within the private property of another person without any lawful purpose, and while inside the property, peeks into an inhabited structure or building. Unlike revenge porn, the jury can still convict you of peeking while loitering if you had no intention to hurt or cause suffering to the victim.
This offense is classified as a misdemeanor. Its punishments include a county jail term of a maximum of six months, or a fine not exceeding $1,000. Alternatively, the convict may be sentenced to informal probation, and he/she will be required to observe certain conditions, such as restituting the victim and making frequent progress reports to a probation officer. If the convict violates any of the probation conditions, he/she will be sent to jail.
2. The United States Code 1801 Video Voyeurism
You’ve probably heard stories about a secret video camera installed inside a public washroom or a hotel room. Often, the primary purpose of these stories is to scare you or urge you to be cautious while traveling.
Federal law criminalizes the recording of individuals in private areas without them issuing their consent. The term ‘private area’ refers to any space where a person would reasonably believe that it is private, including a fitting room, hotel room, or public washroom. If a person films or records you while you are in a private area, he/she can be charged with the criminal offense of video voyeurism. You may be legally filmed in a public place, such as in a retail establishment or even a roadway.
Video voyeurism is a Federal crime, and its punishments are incredibly severe. It is deemed to be a wobbler. This means that it can be charged as either a felony or a misdemeanor. The penalties for misdemeanor video voyeurism may include a fine whose maximum value is $1,000, or a county jail term not exceeding one year. On the other hand, the punishments for felony video voyeurism include a state prison sentence of a maximum of 15 years, or a fine not exceeding $15,000.
3. PC 647(j) Privacy Invasion
According to PC 647(j), it is a criminal offense for an individual to invade the privacy of another person. The California Department of Prosecution can charge you under PC 647(j) if you utilize a device, such as binoculars, to invade the privacy of an individual or if you secretly record or photograph a person’s intimate body parts to arouse yourself sexually.
Just like revenge porn, the criminal offense of privacy invasion is categorized as a misdemeanor. Therefore, its penalties include a county jail term of a maximum of six months, or a fine not exceeding $1,000. In some situations, the judge may sentence a convict to informal probation in lieu of a jail term.
4. PC 602 Trespassing
The criminal offense of trespassing is set out under California Penal Code 602. As per PC 602, it is unlawful to enter or remain on the property of another person without his/her permission. Additionally, Penal Code 602 sets out various instances in which a person can be charged with the criminal offense of trespass.
Trespass is categorized as a misdemeanor. Its punishments include a jail sentence of a maximum of six months, or a fine not exceeding $1,000. However, some types of trespass may result in infractions, and law enforcement will only require you to pay a small amount of money as a fine.
Sometimes, the criminal offense of trespass can be charged as a felony, especially in situations where you had threatened to injure the victim physically and then entered his/her workplace or home without permission. The penalty for felony trespass is imprisonment for 16 months, two, or three years.
While the criminal offense of revenge porn requires you to have taken and distributed the nude image of another person, the court can still convict you of trespass even though you didn't have any intention to record, photograph, or distribute the nude images of the victim. Moreover, it isn’t a requirement for the prosecution to prove that the victim suffered emotional distress in a criminal trial process for trespass.
5. PC 311.1(a) Possession of Child Pornography
According to PC 311.1(a), it is unlawful to record or possess a pornographic image of a child. PC 311.1(a) is a wobbler, and the California Department of Prosecution can charge it as either a felony or a misdemeanor.
The penalty for misdemeanor possession of child pornography is a county jail term of a maximum of one year or a fine not exceeding $1,000. Upon conviction of felony possession of child pornography, the court may order you to serve a state prison sentence of up to three years, or you may be required to pay a fine whose maximum value is $10,000.
If you distributed the child's pornographic images for commercial use, you would be charged under PC 311.2(b). On the other hand, if you intended to utilize the pornographic material for non-commercial reasons, the prosecutor will charge you under PC 311.4(c).
In a nutshell, any act of revenge porn that involves a minor may result in criminal charges for child pornography. In some situations, the prosecutor may opt to just charge you with ‘revenge porn and the presence of an aggravating factor,’ resulting in enhanced sentences upon conviction.
Find a Orange County Criminal Defense Attorney Near Me
We at Orange County Criminal Lawyer have the technical know-how to fight your revenge porn charges. Moreover, we are well-versed with the local court processes in Orange County, and we will strive to ensure you obtain the most favorable outcome. Call us at 714-262-4833 for a free case evaluation.
